Permanent Court of Arbitration

FOR THE past week, the South China Sea ruling by the Permanent Court of Arbitration (PCA) at The Hague has been covered by media on a daily basis. In many of the articles written on the decision, the court has often been referred to as a “UN court,” a “UN arbitral tribunal,” a “UN arbitration court,” a “UN-backed tribunal,” and a “UN Permanent Court of Arbitration.”

Perhaps, because the case has something to do with the UN Convention on the Law of the Sea (Unclos), we assume that the PCA is a UN body or agency. Perhaps, it also provides a sense of familiarity for many readers to associate the court with the United Nations. But in fact, the PCA is not a UN agency and terms like “UN tribunal” or “UN-backed court” are misleading and incorrect.

The PCA was established by the first Hague Peace Conference in 1899 some 15 years before the start of World War I, while the United Nations came into being after World War II, or almost half a century after the PCA. It is an intergovernmental organization that provides a variety of dispute resolution services to the international community. It is based in the Peace Palace at The Hague, Netherlands, sharing a common home with the International Court of Justice which happens to be a UN agency.

While the PCA is one of the oldest institutions for the settlement of international disputes, it is not in the strict sense of the word, a court. What it does is organize arbitral tribunals to resolve conflicts between member-states (now numbering 119), international organizations, or even private parties within an organization.

The full case name covering the dispute is “An Arbitration before an Arbitral Tribunal constituted under Annex VII to the 1982 UN Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China.”

The presiding arbitrator is Judge Thomas A. Mensah of Ghana, who was the first president of the International Tribunal for the Law of the Sea. The other members of the court are Judge Jean-Pierre Cot (France), Judge Rudiger Wolfrum (Germany), Prof. Alfred Soons (Netherlands), and Judge Stanislaw Pawlak (Poland). All are distinguished scholars and jurists with extensive experience particularly in maritime law.

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In its Memorial submitted to the PCA, the Philippines requested action on 15 points; not all were acted upon.

Some of the findings in the dispositif portion of the South China Sea Arbitration Award of July 12, 2016, are as follows:

• China’s nonappearance in the proceedings does not deprive the tribunal of jurisdiction.

• The Philippines’ act of initiating this arbitration did not constitute an abuse of process.

• There is no indispensable third party whose absence deprives the tribunal of jurisdiction.

Among the more significant declarations in the award:

On China’s historic claims and the so-called “nine-dash line” that encompasses practically 80 percent of the South China Sea, the tribunal declared that China’s claim to historic rights in the South China Sea is “contrary to the Convention (Unclos), and without lawful effect.” It further declared that “the Convention superseded any historical rights or jurisdiction.”

On Mischief Reef and the Second Thomas Shoal (Ayungin Shoal where our Marines are stationed on the BRP Sierra Madre), the tribunal declared that they are within the exclusive economic zone (EEZ) and continental shelf of the Philippines.

On Scarborough Shoal (Panatag Shoal, which is a fishing ground of our people in Zambales and Pangasinan), the tribunal found that it “has been a traditional fishing ground for fishermen of many nationalities and declares that China has unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal.”

On the Reed Bank, the tribunal declared that China, through the operation of its marine surveillance, breached its obligations under Article 77 of the Convention with respect to the Philippine sovereign rights over nonliving resources of its continental shelf in the area of Reed Bank.

On the protection and preservation of the marine environment in the South China Sea, the tribunal found that fishermen from Chinese vessels have engaged in the harvesting of endangered species on a significant scale; have engaged in the harvesting of giant clams in a manner destructive of the coral reef ecosystem.

On China’s construction of artificial islands, installation, and structures at Mischief Reef, the tribunal declared that this was done without the authorization of the Philippines.

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With all these findings and declarations in our favor, should we rejoice and express feelings of joy and excitement, or should we exercise “restraint and sobriety” as called for by the government?

In a recent TV talk show hosted by Karen Davila, Dindo Manhit, president of a local think tank named after former foreign secretary Albert del Rosario, and former congressman Roilo Golez, expressed sadness and disappointment that there was no outpouring of joy and happiness over the South China Sea decision. Manhit singled out an official of the Department of Foreign Affairs for his sad demeanor in announcing the court verdict, while Golez mentioned that when Portugal won the European Cup, the entire nation was ecstatic over the victory, with celebrations taking place all over the country. He added “that was just a football game, and here we had won in a case involving our natural resources and territorial rights.”

This fight is not yet over. For one thing, China has always declared from the very beginning that it would not honor whatever are the rulings of the court. And so our fishermen are still being bullied and kept away from their traditional fishing grounds. China is not going to dismantle its installations and structures on Mischief Reef, and we are uncertain about proceeding with explorations at the Reed Bank.

So, what must we do? We need to talk with the Chinese. We have the PCA rulings to support us and with help from the international community in the form of world opinion, we might be able to resolve some of the issues that confront us, not all, just some. There is no such thing as the perfect solution.

Finally, a word of gratitude to former president Noynoy Aquino, former secretary Albert del Rosario, Justices Antonio Carpio and Francis Jardeleza, and former solicitor general Florin Hilbay, and many other people, for their efforts on behalf of the nation at The Hague.